Regular Session - March 29, 1999

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                           NEW YORK STATE SENATE



                                    THE

                            STENOGRAPHIC RECORD









                             ALBANY, NEW YORK

                              March 29, 1999

                                 3:01 p.m.





                              REGULAR SESSION







                 LT. GOVERNOR MARY O. DONOHUE, President

                 STEVEN M. BOGGESS, Secretary















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                           P R O C E E D I N G S

                            THE PRESIDENT:    The Senate will

                 come to order.  I ask everyone present to

                 please rise and repeat with me the Pledge of

                 Allegiance.

                            (Whereupon, the assemblage recited

                 the Pledge of Allegiance to the Flag.)

                            THE PRESIDENT:    In the absence of

                 clergy, may we bow our heads in a moment of

                 silence.

                            (Whereupon, the assemblage

                 respected a moment of silence.)

                            THE PRESIDENT:    Reading of the

                 Journal.

                            THE SECRETARY:    In Senate,

                 Sunday, March 28, the Senate met pursuant to

                 adjournment.  The Journal of Saturday,

                 March 27, was read and approved.  On motion,

                 Senate adjourned.

                            THE PRESIDENT:    Without

                 objection, the Journal stands approved as

                 read.

                            Presentation of petitions.

                            Messages from the Assembly.

                            Messages from the Governor.





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                            Reports of standing committees.

                 The Secretary will read.

                            THE SECRETARY:    Senator Kuhl,

                 from the Committee on Education, reports:

                            Senate Prints 2245, by Senator

                 Stachowski, an act to amend the Education Law;

                            2754, by Senator Holland, an act to

                 amend the Education Law;

                            3257, by Senator Leibell, an act to

                 legalize, validate, ratify and confirm;

                            3268, by Senator Saland, an act to

                 authorize the apportionment of state building

                 aid;

                            3387, by Senator Volker, an act to

                 amend Chapter 198 of the laws of 1978;

                            3532, by Senator Farley, an act in

                 relation to the calculation of average daily

                 attendance;

                            4116, by the Committee on Rules, an

                 act to amend Chapter 45 of the laws of 1996.

                            All bills directly for third

                 reading.

                            THE PRESIDENT:    Without

                 objection, all bills directed -- ordered

                 direct to third reading.





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                            Reports of select committees.

                            Communications and reports from

                 state officers.

                            Motions and resolutions.

                            Senator Kuhl?

                            SENATOR KUHL:    Yes, Madam

                 President.

                            On behalf of Senator Meier, on

                 page 10 I offer the following amendments to

                 Calendar Number 163, Senate Print 1908A, and

                 ask that said bill retain its place on the

                 third reading calendar.

                            THE PRESIDENT:    The amendment is

                 received and the bill will retain its place on

                 the third reading calendar.

                            SENATOR KUHL:    Also, Madam

                 President, on behalf of Senator Maltese, on

                 page 26 I offer the following amendments to

                 Calendar Number 420, Senate Print 2613, and

                 ask that said bill retain its place on the

                 third reading calendar.

                            THE PRESIDENT:    The amendments

                 are received and the bill will retain its

                 place on the third reading calendar.

                            SENATOR KUHL:    Also, Madam





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                 President, on behalf of Senator Nozzolio, I

                 wish to call his bill up, Print Number 636

                 recalled from the Assembly, which is now at

                 the desk.

                            THE PRESIDENT:    The Secretary

                 will read.

                            THE SECRETARY:    By Senator

                 Nozzolio, Senate Print 636, an act to amend

                 the Penal Law.

                            SENATOR KUHL:    Madam President, I

                 now move to reconsider the vote by which the

                 bill passed the house.

                            THE PRESIDENT:    The Secretary

                 will call the roll on reconsideration.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 48.

                            SENATOR KUHL:    I offer the

                 following amendments.

                            THE PRESIDENT:    The amendments

                 are received.

                            SENATOR KUHL:    Thank you.

                            SENATOR SKELOS:    Madam

                 President -

                            THE PRESIDENT:    Senator Skelos.

                            SENATOR SKELOS:    -- I believe





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                 there are some substitutions to be made.

                            THE PRESIDENT:    Yes, Senator.

                            The Secretary will read the

                 substitutions.

                            THE SECRETARY:    On page 20,

                 Senator Maziarz moves to discharge, from the

                 Committee on Health, Assembly Bill Number 6968

                 and substitute it for the identical third

                 reading, 356.

                            On page 27, Senator Volker moves to

                 discharge, from the Committee on Codes,

                 Assembly Bill 5203 and substitute it for the

                 identical third reading, 425.

                            On page 23, Senator Kuhl moves to

                 discharge, from the Committee on

                 Investigations, Taxation and Government

                 Operation, Assembly Bill Number 824 and

                 substitute it for the identical third reading,

                 383.

                            THE PRESIDENT:    The substitutions

                 are ordered.

                            Senator Skelos?

                            SENATOR SKELOS:    Madam President,

                 there will be an immediate meeting of the

                 Environmental Conservation Committee in the





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                 Majority Conference Room.

                            THE PRESIDENT:    There will be an

                 immediate meeting of the Environmental

                 Conservation Committee in the Majority

                 Conference Room.

                            Senator Skelos.

                            SENATOR SKELOS:    Madam President,

                 if we could take up the noncontroversial

                 calendar.

                            THE PRESIDENT:    The Secretary

                 will read.

                            THE SECRETARY:    Calendar Number

                 1, by Senator LaValle, Senate Print S28, an

                 act to amend the Education Law.

                            THE PRESIDENT:    Read the last

                 section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect January 1st, the year

                 2000.

                            THE PRESIDENT:    Call the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 50.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number





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                 117, by Senator Larkin, Senate Print 2105A -

                            SENATOR PATERSON:    Lay it aside.

                            THE SECRETARY:    -- an act in

                 relation to the amount of the New York

                 State -

                            SENATOR PATERSON:    Lay it aside.

                            THE PRESIDENT:    The bill is laid

                 aside.

                            THE SECRETARY:    Calendar Number

                 120, by Member of the Assembly Brodsky,

                 Assembly Print 2597, an act to amend the

                 General Business Law in relation to avoiding.

                            THE PRESIDENT:    Read the last

                 section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect immediately.

                            THE PRESIDENT:    Call the roll.

                            (The Secretary called the roll.)

                            SENATOR PATERSON:    Lay it aside.

                            THE PRESIDENT:    The bill is laid

                 aside.

                            THE SECRETARY:    Calendar Number

                 159, by Senator LaValle, Senate Print 2578, an

                 act to amend the Education Law in relation to

                 mandatory continuing education.





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                            THE PRESIDENT:    Read the last

                 section.

                            THE SECRETARY:    Section 3.  This

                 act shall take effect January 1st, the year

                 2000.

                            THE PRESIDENT:    Call the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 50.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 184, by Senator Maltese, Senate Print 2191A,

                 an act to amend the Penal Law in relation to

                 clarifying.

                            THE PRESIDENT:    Read the last

                 section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect on the 1st day of

                 November.

                            THE PRESIDENT:    Call the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 54.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number





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                 218, by Senator Padavan, Senate Print 1905, an

                 act to amend the Real Property Law in relation

                 to occupation.

                            THE PRESIDENT:    Read the last

                 section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect immediately.

                            THE PRESIDENT:    Call the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 53.  Nays,

                 1.  Senator Duane recorded in the negative.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 328, by Senator Lack, Senate Print 2542, an

                 act to amend the Insurance Law in relation to

                 a guarantee.

                            THE PRESIDENT:    Read the last

                 section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect immediately.

                            THE PRESIDENT:    Call the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 54.

                            THE PRESIDENT:    The bill is





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                 passed.

                            THE SECRETARY:    Calendar Number

                 339, by Senator Kuhl, Senate Print 1723, an

                 act to amend the Agriculture and Markets Law

                 in relation to persons exempt from certain

                 regulation.

                            THE PRESIDENT:    Read the last

                 section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect immediately.

                            THE PRESIDENT:    Call the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 54.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 356, substituted earlier today by Member of

                 the Assembly Clark, Assembly Print 6968, an

                 act to amend Chapter 81 of the laws of 1995.

                            THE PRESIDENT:    Read the last

                 section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect immediately.

                            THE PRESIDENT:    Call the roll.

                            (The Secretary called the roll.)





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                            THE SECRETARY:    Ayes, 54.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    In relation to

                 Calendar Number 393, Senator Holland moves to

                 discharge, from the Committee on Social

                 Service, Assembly Bill 7165 and substitute it

                 for the identical third reading, 393.

                            THE PRESIDENT:    Substitution

                 ordered.  Read the last section.

                            The Secretary will read.

                            THE SECRETARY:    Calendar Number

                 393, by Member of the Assembly Ramirez,

                 Assembly Print 7165, an act to amend the

                 Social Services Law.

                            THE PRESIDENT:    Read the last

                 section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect immediately.

                            THE PRESIDENT:    Call the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 54.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number





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                 431.  In relation to Calendar Number 431,

                 Senator Meier moves to discharge, from the

                 Committee on Veterans and Military Affairs,

                 Assembly Print 7107 and substitute it for the

                 identical third reading, 431.

                            THE PRESIDENT:    Substitution

                 ordered.  Read the last section.

                            The Secretary will read.

                            THE SECRETARY:    Calendar Number

                 431, by Member of the Assembly John, Assembly

                 Print 7107, an act to amend Section 76 of

                 Chapter 435 of the laws of 1997.

                            THE PRESIDENT:    Read the last

                 section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect immediately.

                            THE PRESIDENT:    Call the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 56.

                            THE PRESIDENT:    The bill is

                 passed.

                            Senator Skelos, that completes the

                 reading of the noncontroversial calendar.

                            SENATOR SKELOS:    Madam President,

                 if we could take up the controversial





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                 calendar.

                            THE PRESIDENT:    The Secretary

                 will read.

                            THE SECRETARY:    Calendar Number

                 117, by Senator Larkin, Senate Print 2105A, an

                 act in relation to the amount of the New York

                 State Thoroughbred Breeding and Development

                 Fund.

                            Senator Dollinger.

                            SENATOR DOLLINGER:    Madam

                 President, rather than ask for an explanation,

                 if Senator Larkin will just yield to one

                 simple question and explain to me why this

                 bill is different from the one that we did in

                 committee -- I understand it's been amended -

                 just a brief explanation of that.

                            THE PRESIDENT:    Senator Larkin,

                 do you yield?

                            SENATOR LARKIN:    Yes.

                            THE PRESIDENT:    Go ahead, Senator

                 Dollinger.

                            SENATOR LARKIN:    Richard, what

                 happened is in 1998 the breeders' fund earned

                 $70,135 more than the cap that was set on it.

                 This is the money that's supposed to go back





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                 to the breeders.  They had anticipated what

                 the maximum would have been.  Instead, it came

                 in at $70,000 over.

                            And this is going back.  Because it

                 helps the economy, it helps agriculture, it

                 helps the breeders.  It's going to them, it's

                 not going into a pot of money for somebody

                 else.

                            SENATOR DOLLINGER:    Again through

                 you, Madam President, if I could just ask one

                 follow-up question.

                            The bill we saw in committee was a

                 percentage, was it not?  This is an exact

                 dollar amount, is that not correct?

                            SENATOR LARKIN:    Yes.

                            SENATOR DOLLINGER:    Thank you,

                 Madam President.

                            THE PRESIDENT:    Read the last

                 section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect immediately.

                            THE PRESIDENT:    Call the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 56.

                            THE PRESIDENT:    The bill is





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                 passed.

                            THE SECRETARY:    Calendar Number

                 120, by Member of the Assembly Brodsky,

                 Assembly Print 2597, an act to amend the

                 General Business Law.

                            SENATOR DOLLINGER:    Explanation.

                            THE PRESIDENT:    Senator Lack, an

                 explanation has been requested.

                            SENATOR LACK:    Thank you, Madam

                 President.

                            Senator Dollinger, this is merely a

                 chapter amendment to the Donnelly Act, the

                 bill we passed last year.  It's passed the

                 Assembly 142 to 1.

                            It's a three-way-agreed-upon

                 amendment to conform the Donnelly Act

                 amendment that we passed to the wishes of the

                 Governor and, actually, to the sponsors.  The

                 Governor signed the bill upon agreement that

                 we would propose that we would pass this

                 amendment.

                            Which merely states that where an

                 indirect purchaser who's sustained damages -

                 that the courts are required to consolidate

                 claims where claims by both direct and





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                 indirect purchasers have been asserted against

                 the defendant.

                            It's, as I said, a three-way

                 agreement amongst the houses.

                            SENATOR DOLLINGER:    Through you,

                 Madam President -

                            THE PRESIDENT:    Senator -

                            SENATOR DOLLINGER:    -- just one

                 question for Senator Lack.

                            SENATOR LACK:    Yes.

                            SENATOR DOLLINGER:    My

                 understanding was that in the 1998 bill, we

                 instructed the courts to do everything

                 possible to consolidate them.

                            This actually tells them to

                 consolidate them, is that correct?  Or am I

                 misreading that?  I mean, is this -

                            SENATOR LACK:    No, this says a

                 defendant shall be entitled to -- to show that

                 it's been passed on to others.  It doesn't -

                 in effect doesn't require them, but it has the

                 same effect to do just that, by showing that

                 the damages have been passed on to others who

                 are entitled to recover, to avoid duplication

                 in the recovery of damages.





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                            It just, Senator, underscores what

                 we did and suggested last year in terms of the

                 bill that passed.

                            SENATOR DOLLINGER:    Again,

                 through you, Madam President.

                            So if you're a direct-

                            THE PRESIDENT:    Senator Lack, do

                 you yield?

                            SENATOR LACK:    Yes.

                            THE PRESIDENT:    Go ahead,

                 Senator.

                            SENATOR DOLLINGER:    I apologize,

                 Madam President.

                            So if you're a direct purchaser and

                 you pass the cost on, you have no claim?  It's

                 those people who in essence have paid the

                 extra cost; is that correct?

                            SENATOR LACK:    No.  No, Senator,

                 that's not correct.  It is nothing that

                 functions so directly.

                            All this simply says, that -- is,

                 Madam President, in actions where both direct

                 and indirect purchasers are involved, a

                 defendant shall be entitled to prove as a

                 partial or complete defense to a claim that





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                 the illegal overcharge has been passed on to

                 others who are themselves entitled to recover.

                            SENATOR DOLLINGER:    Thank you,

                 Madam President.

                            Explanation satisfactory.

                            THE PRESIDENT:    Read the last

                 section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect immediately.

                            THE PRESIDENT:    Call the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 56.

                            THE PRESIDENT:    The bill is

                 passed.

                            Senator Skelos, that completes the

                 reading of the controversial calendar.

                            SENATOR SKELOS:    Is there any

                 housekeeping at the desk?

                            (Pause.)

                            THE PRESIDENT:    The Senate is

                 standing in waiting, Senator Skelos.

                            SENATOR SKELOS:    Would you please

                 recognize Senator Paterson?

                            SENATOR PATERSON:    Madam

                 President, I would like -





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                            THE PRESIDENT:    Senator Paterson.

                            SENATOR PATERSON:    -- I would

                 like the desk to be aware that, according to

                 the U.S. Naval Observatory master clock, the

                 Senate clock is two minutes slow.

                            (Laughter.)

                            SENATOR PATERSON:    Thank you.

                            SENATOR SKELOS:    Madam President,

                 that's so the Minority can catch up to the

                 Majority.

                            (Laughter.)

                            THE PRESIDENT:    Thank you for

                 that clarification.

                            The Senate is still standing at

                 ease, Senators.

                            (Pause.)

                            SENATOR SKELOS:    Madam President.

                            THE PRESIDENT:    Senator Skelos?

                            SENATOR SKELOS:    If we could

                 return to reports of standing committees, I

                 believe there's a report of the Environmental

                 Conservation Committee at the desk.  I ask

                 that it be read.

                            THE PRESIDENT:    Reports of

                 standing committees.  The Secretary will read.





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                            THE SECRETARY:    Senator

                 Marcellino, from the Committee on

                 Environmental Conservation, reports:

                            Senate Print 2973B, by Senator

                 Marchi, an act to amend Chapter 395 of the

                 laws of 1978, and Senate Print 4151, by

                 Senator Marcellino, an act to repeal Title 17

                 of Article 23 of the Environmental

                 Conservation Law.

                            Both bills directly for third

                 reading.

                            THE PRESIDENT:    Without

                 objection, all bills ordered direct to third

                 reading.

                            Senator Skelos.

                            SENATOR SKELOS:    Is there any

                 housekeeping?

                            THE PRESIDENT:    No, there is not,

                 Senator.

                            SENATOR SKELOS:    There being no

                 further business, I move we adjourn until

                 Tuesday, March 30th, at 3:00 p.m.

                            THE PRESIDENT:    On motion, the

                 Senate stands adjourned until Tuesday,

                 March 30th, 3:00 p.m.





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                            (Whereupon, at 3:17 p.m., the

                 Senate adjourned.)